# C_2019093EN.01006501.xml

| 11.3.2019 | EN | Official Journal of the European Union | C 93/65 |
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11.3.2019

EN

Official Journal of the European Union

C 93/65

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Action brought on 22 December 2018 — FL Brüterei M-V and Others v Commission

(Case T-755/18)

(2019/C 93/86)

Language of the case: German

Parties

Applicants: FL Brüterei M-V GmbH (Finkenthal, Germany), Erdegut GmbH (Finkenthal), Ökofarm Groß Markow GmbH (Lelkendorf, Germany) (represented by: H. Schmidt, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Article 1(4) of Commission Implementing Regulation (EU) 2018/1584 (1) of 22 October 2018, published under L 264/1 in the Official Journal of the European Union on 23 October 2018, which amended Regulation (EC) No 889/2008 (2) as follows: ‘in Article 42(b), the date “31 December 2018” is replaced by “31 December 2020”’; |
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annul Article 1(4) of Commission Implementing Regulation (EU) 2018/1584 (1) of 22 October 2018, published under L 264/1 in the Official Journal of the European Union on 23 October 2018, which amended Regulation (EC) No 889/2008 (2) as follows: ‘in Article 42(b), the date “31 December 2018” is replaced by “31 December 2020”’;

| — | order the defendant to pay EUR 2 469 503,44 to FL Brüterei M-V GmbH plus default interest from the date of notification of the action at the rate of eight percentage points per annum above the base rate of the European Central Bank; and |
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order the defendant to pay EUR 2 469 503,44 to FL Brüterei M-V GmbH plus default interest from the date of notification of the action at the rate of eight percentage points per annum above the base rate of the European Central Bank; and

| — | rule that the defendant is under an obligation to compensate the applicants for the additional harm caused to them by the Commission’s adoption of a further two-year exception with Implementing Regulation (EU) 2018/1584, which, when organic pullets ‘are not available’, permits non-organic pullets to be brought into organic pullet livestock, without, having regard to the Commission’s duty to keep that exception ‘to a minimum’ under Article 22(2) of Regulation (EC) No 834/2007, (3) the use of the exception requiring that no hatcheries within a radius of up to 700 kilometres from the location of the pullet farm supply organic pullets, and that proof of the lack of availability of organic pullets is to be provided through the unsuccessful placement of orders with three hatcheries that are known suppliers of organic pullets and not through demand at hatcheries that are known for not supplying organic pullets. |
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rule that the defendant is under an obligation to compensate the applicants for the additional harm caused to them by the Commission’s adoption of a further two-year exception with Implementing Regulation (EU) 2018/1584, which, when organic pullets ‘are not available’, permits non-organic pullets to be brought into organic pullet livestock, without, having regard to the Commission’s duty to keep that exception ‘to a minimum’ under Article 22(2) of Regulation (EC) No 834/2007, (3) the use of the exception requiring that no hatcheries within a radius of up to 700 kilometres from the location of the pullet farm supply organic pullets, and that proof of the lack of availability of organic pullets is to be provided through the unsuccessful placement of orders with three hatcheries that are known suppliers of organic pullets and not through demand at hatcheries that are known for not supplying organic pullets.

Pleas in law and main arguments

The action is based on the following pleas in law.

| 1. | First plea in law: invalidity of the regulatory act






  — | In the context of the first plea in law, the applicants claim that the defendant failed to fulfil its duty to keep exceptions to the principle laid down by Article 14(1)(a) of Regulation (EC) No 834/2007, according to which young animals for organic livestock production must be born and raised on organic holdings, to a minimum. |
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1.

First plea in law: invalidity of the regulatory act

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In the context of the first plea in law, the applicants claim that the defendant failed to fulfil its duty to keep exceptions to the principle laid down by Article 14(1)(a) of Regulation (EC) No 834/2007, according to which young animals for organic livestock production must be born and raised on organic holdings, to a minimum.

| — | In that regard, it is submitted that the extension of the exception by two years infringes the requirement in Article 22 of Regulation (EC) No 834/2007 to keep exceptions to a minimum. In the applicants’ view, the lack of qualitative conditions and limits makes possible an abusive practice, as the defendant found in the Kingdom of the Netherlands. |
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In that regard, it is submitted that the extension of the exception by two years infringes the requirement in Article 22 of Regulation (EC) No 834/2007 to keep exceptions to a minimum. In the applicants’ view, the lack of qualitative conditions and limits makes possible an abusive practice, as the defendant found in the Kingdom of the Netherlands.

| 2. | Second plea in law: liability for administrative wrongdoing under the second paragraph of Article 340 TFEU






  — | In the context of the second plea in law, it is submitted that the defendant failed to ensure compliance by the Netherlands with the rule in Article 42(b) of Regulation (EC) No 889/2008. |
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2.

Second plea in law: liability for administrative wrongdoing under the second paragraph of Article 340 TFEU

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In the context of the second plea in law, it is submitted that the defendant failed to ensure compliance by the Netherlands with the rule in Article 42(b) of Regulation (EC) No 889/2008.

| — | It that regard, it is submitted that the applicants suffered losses of income on account of the defendant’s deficient conduct, since the defendant failed to urge the Dutch authorities properly to conduct the bringing of organic pullets into organic pullet livestock. |
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It that regard, it is submitted that the applicants suffered losses of income on account of the defendant’s deficient conduct, since the defendant failed to urge the Dutch authorities properly to conduct the bringing of organic pullets into organic pullet livestock.

| 3. | Third plea in law: liability for wrongdoing in the exercise of implementing powers
  In the context of the third plea in law, the applicants claim that, by further adopting an exception that is merely limited in time and is not subject to any qualitative conditions and requirements, the defendant failed to respect the requirements of Article 22 of Regulation (EC) No 834/2007 and acted outwith the powers conferred on it. |
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Third plea in law: liability for wrongdoing in the exercise of implementing powers

In the context of the third plea in law, the applicants claim that, by further adopting an exception that is merely limited in time and is not subject to any qualitative conditions and requirements, the defendant failed to respect the requirements of Article 22 of Regulation (EC) No 834/2007 and acted outwith the powers conferred on it.

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(1)  Commission Implementing Regulation (EU) 2018/1584 of 22 October 2018 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2018 L 264, p. 1).

(2)  Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1).

(3)  Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1).

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